Defamation and 1st Amendment Considerations
Balancing Freedom of Speech with Defamation
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How does the 1st Amendment Affect Defamation Law?
Defamation laws have the effect of limiting free speech. Because of this, there is a limit on defamation laws. There is no prior restraint of speech. That is, one is free to make defamatory statements. These laws, however, allow an individual to recover for the harm suffered because of a defamatory communication.
How does defamation apply to celebrities or public figures?
Special rules apply to the defamation of celebrities and public figures and defamation by the news media.
The media is not liable for the defamatory untruths they print unless the plaintiff can prove the untruths were published with malice (evil intent that is the deliberate intent to injure) or with reckless disregard for the truth.
Likewise, for a celebrity or public figure to recover for defamation, she must demonstrate that the defendant defamed her with malice or with reckless disregard for the truth.
Discussion: Do you believe that defamation laws violate the 1st Amendment? Why or why not? How should the rights of individuals against defamation be balanced against individual freedom of speech? Do the higher standards for defamation against celebrities, public figures, and the media effectively balance those rights? Why or why not?
Practice Question: Donald is running for political office. He routinely says things about his opponents that are not true. Many of the statements are very offensive and attack the opponent's personal character. Under what conditions could Donald be liable for his statements?
- The 1st Amendment provides everyone the right to freedom of speech. However one cannot exercise this freedom if in so doing they will be hurting the reputation and character of any other person. A person is not protected under the 1st Amendment if the statement they publish is untrue and aimed at maliciously tainting the reputation of the public figure or celebrity. Where the statement is untrue, malicious and intended at ruining the reputation of the victim, then the publisher of the statement is guilty of committing defamation. In the example from the practice question, Donald could be guilty of committing defamation. https://courses.lumenlearning.com/boundless-politicalscience/chapter/the-first-amendment-the-right-to-freedom-of-religion-expression-press-and-assembly/
Academic Research on Defamation and the 1st Amendment
- Lasson, Kenneth, Racial Defamation as Free Speech: Abusing the First Amendment (1986). Columbia Human Rights Law Review, Vol. 17, No. 1, 1986. Available at SSRN: https://ssrn.com/abstract=1166882
- Ardia, David S., Freedom of Speech, Defamation, and Injunctions (August 8, 2013). 55 William & Mary Law Review 1 (2013); UNC Legal Studies Research Paper No. 2307744. Available at SSRN: https://ssrn.com/abstract=2307744